June 10, 2006

In 1977, the Supreme Court ruled that the death penalty could not be imposed for the rape of an adult woman. The penalty was, the court ruled, disproportionate to the crime and therefore forbidden as cruel and unusual punishment under the Eighth Amendment.

"Life is over for the victim of the murderer," Justice Byron R. White wrote for the majority. "For the rape victim, life may not be nearly so happy as it was, but it is not over and normally is not beyond repair."

The defendant in that case, Ehrlich Coker, escaped from a state prison in Georgia where he was serving time for a murder and two rapes. He soon raped another woman in front of her husband. He was sentenced to death for that last crime.

Dissenting from the majority decision to overturn Mr. Coker's death sentence, Chief Justice Warren E. Burger wrote that the ruling "prevents the state from imposing any effective punishment upon Coker for his latest rape."

... In recent decisions barring the execution of juvenile offenders and the mentally retarded, the court took careful stock of state laws and trends in state legislatures to evaluate whether a societal consensus existed to permit or bar capital punishment in given classes of cases.

Trey Walker, chief executive assistant to Attorney General Henry McMaster of South Carolina, said in an interview yesterday that "there will be more and more" laws making sex crimes against children capital offenses.

"This is something the Supreme Court takes into account," Mr. Walker said. "There is not much doubt that this law would be upheld and found constitutional."

In Coker, Georgia was the only state with the death penalty for the rape of an adult. The case largely preceded the very intense political activity aimed at making people take rape much more seriously than they had before. Here's Justice White's description of the rape:

Mrs. Carver was unharmed. How many law professors have read that line sarcastically in class? I know I have. I can't imagine White writing like that 10 years later, after all the discussion of rape that took place in that time. Brownmiller's "Against Our Will" was published in 1975 and the author was one of a collection of women who were named Time magazine's "Persons of the Year" in 1975, two years before Coker, so I still have to say that the Court, at the very least, had a tin ear. Even when you're striking down the death penalty, the convention is to show great respect for the suffering of the victim. But Mrs. Carver was unharmed. Really, that belongs on the list of worst sentences ever written by a Supreme Court Justice.

So Georgia's anomalous law made it easier to strike down the death penalty for rape of an adult. What happens now as more and more states adopt the death penalty for the rape of a child? The public understanding of the harm to children has grown over the years, as has the conviction that persons who commit this crime are hopeless and even inhuman. You may say that you think the Constitution should not be interpreted to take account of the current understanding of what is "cruel and unusual," but the Justices who agree with you can be counted on to accept what the states are doing now. What should the Justices who go by "the evolving standards of decency that mark the progress of a maturing society" say about the death penalty for child rape?

Consider the unintended consequence: authorizing the death penalty will stimulate sympathy for child rapists. Death penalty opponents will be motivated to paint a strong picture of the rapist as a pitiable creature with a terrible mental health problem.

I think there were two states at the time Coker was decided that had the death penalty as a possible punishment for raping an adult woman, but Georgia's rule was the only one where rape per se was a capital crime.

As to unintended consequences, then justice Rehnquist wrote about those in his dissent in Coker (as Ann noted above), arguing that not being able to give Coker the death penalty meant that the state had no effective deterrent for people in his position (he was serving consequtive lengthy sentences and was never going to get out).

As a practical matter, I think detterrence is simply unpersuasive as to punishment (rational people don't typically do these things; irrational people aren't typically persuaded by deterrents). To put it in context: not wearing your seatbelt is considerably more dangerous than wearing it, but many people are more concerned with the $50.00 fine for not wearing their seatbelt than the increased chance of death (I'm sure some behavioral economist has studied it).

Drethlin, the theory is that one would hope to deter the child rapist ab initio (though I think it unlikely). Your argument is probably reducible to an argument against any punishment for anything, so I'm not sure I buy it. Why give the DP to murderers, because it will encourage them to keep killing? Rehnquist had the same thing to say, basically (once we give him life in prison, what's to stop him from killing guards or fellow prisoners, or escaping to do the same thing?) As a practical matter, it doesn't really happen that way.

As to unintended consequences, child rapists are anything but pitiable (I once saw a case in the PD's office where a defendant had raped an infant), and if they have mental problems, well, so what? We cage them. If they can't play by the rules, they get to spend their lives in a cage, and to hell with them. I don't buy now, nor have I ever bought, any sort of affirmative defense for mental incapacity. Even if your argument is that "he didn't know better," that's all the more reason to cage the beast.

I don't see how this particular unintended consequence will be in any way meaningful (especially given how anti-DP efforts are generally unpersuasive in any event).

My basic point was not against the death penalty but against applying it too broadly. If he is already going to die for raping the child, why not murder it as well? This is speaking less about possible future consequences and more on immediate thoughts and deeds.

Drethelin, it's hard for me to see a situation where a child rapist would think, 'whoah, I better not harm this child further, then I could be in real trouble'. Once someone gets to the point of raping children aren't they already in pretty bad legal waters? Sympathy from juries might convince me, but further actions don't.

"Life is over for the victim of the murderer," Justice Byron R. White wrote for the majority. "For the rape victim, life may not be nearly so happy as it was, but it is not over and normally is not beyond repair."

I couldn't help but think of "an eye for an eye" when I read this, but carried to a point of saying that the punishment should not be worse than the crime. If that is the norm then as long as the odds of being caught are less than certainty, then the expected value of crime is positive. Unintended consequences fall both ways.

I would like to see some statistics, but it seems like there are more repeat offenders killing and raping these days than, say, in the 40s. Maybe someone should do a study tracking recidivism with the evolution of penalties.

The role of therapy and rehabilitation for these monsters needs to be rethought. Even Freud said, sometimes a cigar is just a cigar. These guys are just bad. Someone who rapes a child should not be on the street.

Hmm.. good point Ann. As I was thinking about writing this comment, I realized my reasoning wasn't as open-and-shut as I thought it was.

Still, there's some primal satisfaction from executing child rapists. I guess my question is what if one party argues it it was consensual? Rape is so hard to prove one way or the other. That person should still be imprisoned for statutory rape, but the death penalty seems extreme.

That said, both Taiwan and Singapore have used the death penalty for the smuggling of drugs and firearms, to great effect. However, these crimes are premeditated in nature, and have substantial physical evidence.

If I remember correctly, when Byron White left the Court, the New Republic published a long article that basically said the Court would be a better place without him. That one line in the Coker decision certainly supports TNR's contention.

While I have no moral problems with executing child rapists in principle, one big issue of concern I have would be the issue of proof. There have been many examples of false accusations of child sexual abuse (the McMartin and Amirault cases come to mind), and this type of accusation tends to bring out the worst type of mix between bad psychology and overzealous prosecution (suggestive interrogations of children, etc.). I know that capital punishment for murder has similar issues of concern, but at least in most murder cases you have a corpse to deal with, which at the very least shows that a murder did in fact occur, while in child sexual abuse cases there can be a lack of physical evidence that the crime occurred to begin with.

Also, Patca, you are correct. Sex offenders have higher and longer recidivism rates than other offenders. Armed robbery is a young man's game, while sexual molestation is a crime people commit well into their later years.

There is no such thing as rehabilitating a pedophile. It's like trying to convince a straight male to stop being attracted to women. It's just not possible. Pedophiles should get life in prison, no chance of parole; unfortunately, as pogo pointed out, they seem to get let out again and again.

I am against the death penalty, but if that is what it takes to finally stop the cycle of releasing pedophiles to do more harm and ruin more lives, then I can't really find it in me to oppose it.

I tend to agree that once the death penalty is on the table, a criminal would kill in order to minimize the possibility of a witness against him. Another problem here is that juries will be conflicted, and I think we could see more acquittals of accused child rapists, especially in family situations. They might be concerned that the child was coached into lying. And how can we forget the judge who, in throwing out charges against an accused child rapist, said that the 5-year-old girl in question was "unusually seductive"? We'll also likely see more plea agreements to lesser charges, to avoid jury trials. Long prison terms, and post-prison restrictions are better, I think, than the death penalty for child rape, because of the possible backlash and unintended consequences.

I agree that making child rape a capital crime will motivate death penalty opponents to push for extremely undesirable things - like rehabilitation, which so clearly does not work in these types of cases.

I also think another unintended consequence will be the lengths to which defendants on death row drag out their cases. A child will be an adult by the time their rapist is executed - and will have spent their entire lives dealing with trial after trial.

I disagree with John Jenkins who says I think detterrence is simply unpersuasive as to punishment. I think unlikely deterrence is unpersuasive. It doesn't matter how bad the punishment is if you don't think you will be caught. I think that also explains your seatbelt theory - people believe it is far more likely to receive a ticket than to suffer a serious crash.

I think that states should have the right pass laws allowing (but not requiring) the death penalty for crimes committed by a person already convicted or indited for a crime in which life in prison is an option.

That would cover the sorts of crimes for which it actually might have a deterrent impact. Things like:

1. killing a prison guard by a convict already serving life2. the Coker case, with an escaped prisoner3. murder of witnesses during the course of a trial, (favorite of drug dealers and gangs)

Seven Machos-...Especially when the Constitution explicitly contemplates the death penalty. The Fifth Amendment mentions "a capital...crime" and both the Fifth and Fourteenth contemplate a person being deprived of life, as well as liberty or property.

somefeller-I agree that proof would be a problem, more so than in a murder case. Even harder would be in the rape of an adult, which are usually "he-said-she-said" situations

I am unpersuaded by the whole deterrence debate. In my opinion, the first purpose of imprisonment or execution is to make the person unable to offend again, if only for a while; the second purpose is to punish, which entails rehabilitation; and the third purpose is to deter. Or in other words, we don't kill people who kill in order to show it's wrong to kill (as the bumper sticker says) we kill people who kill in order to get rid of people who kill.

Drethelin, it's hard for me to see a situation where a child rapist would think, 'whoah, I better not harm this child further, then I could be in real trouble'. Once someone gets to the point of raping children aren't they already in pretty bad legal waters? Sympathy from juries might convince me, but further actions don't.

I once spoke with a current Federal Circuit judge, who used to be a prosecutor. He once tried a case in which a criminal abducted a child, raped her, and released her.

He asked why the criminal didn't just kill the kid. His answer? I thought about it, but I didn't want to get the needle if I got caught. So I let her go.

Thought some real life facts would help to qualify the discussion usefully.

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For my money, the death penalty should never be imposed for crimes less than intentional murder. A: It costs too much, and B: it feels disproportionate. I don't think it makes since either from a deterrent position, or from a retributive perspective.

Seven: as I read CB's comment, he was saying that the reference to capital crimes and deprivations of life meant that the constitution's original understanding did not include making the death penalty unconstitutional.

So you are bashing people who are on your side.

Even though I think the death penalty should be imposed less often than it is at present, I agree that the constitution cannot properly be read to prohibit it.

Yes, you are right; that is what CB is saying; and CB is on my side; and I apologize profusely. It is a tremendous and humbling irony. I accused CB of reading carelessly while reading carelessly myself. Beyond embarassing for me.

On the other hand, no wonder I thought he was making no sense. It was because I was too stupid to understand what he was saying.

legally:does "cruel and unusual" have anything to do with harshness of punishment, or are "cruel" and "unusual" blanket terms? is it "cruel" to execute people for speeding tickets, or is that instead simply out of proportion? is disproportionate punishment unconstitutional?

the Coker ruling implies that disproportionate = cruel, but I'm not sure that's really on target. I'm against the death penalty because I think it's both cruel and unusual for the state to take human life, but given that it hasn't been struck down I don't see anything stopping states from using it on any offense they agree upon (speeding tickets included).

The unintended result of the dealth penalty for rape would be an increase the the chances that the rapist would murder the victim.

Most of the time, the only witness to a rape is the rape victim. Therefore a rapist decreases his chances of being caught and convicted if the victim is killed. If the penalty is the same for rape and for murder, what incentive would a criminal have to let his victim live?

It's fairly clear that the DP is not constitutionally "cruel and unusual" as such. Dave, yes, disproportionate punishment is inconsistent with the 8th Amendment's cruel and unusual standard (though I think that Justice Scalia doesn't believe in the proportionality inquiry).

dbp, that's quite a pile of assertions. Most of the time, the rapist denys the rape and claims consent. But we're talking aboout the subset of child rape (where consent is not possible). Most child molestors don't think they are doing anything wrong and would see no reason to kill the children.

The more dangerous (i.e. deadly) ones are going to kill anyway. I, for one, don't think the government should have the power to execute its citizens as a matter of first principles, so I oppose the DP on all accounts, but those who don't share my principles on that will disagree.

I don't think the "you're turning a rapist into a murderer" argument is going to carry much weight, in any event. Real world practicality tells us that's just not the case because we can look at the behavior of murderers in capital cases (I note that in many states, killing a witness to a crime to avoid prosecution is itself an aggravating factor turning first-degree murder into capital murder).

Here's another for you: witnesses are overrated. In fact, eyewitnesses are pretty much worthless. You'd much rather have DNA evidence and other physical evidence than a person saying "that's the guy!"

There are basically two kinds of criminals: the dumb and the sociopathic. The sociopathic don't give a shit and the dumb aren't going to be deterred or incentivized. I don't think this is a good idea, or an effective one, but I don't think these puerile consequentialist arguments are ever going to win.

As a final question: exactly why do we think we need to incentivise criminals to let people live? I think I'm missing something here.

C. Althouse, in Oklahoma it's sex with a person aged 14 or younger. It's in Oklahoma S.B. 1800, which is not yet available online but amends 10 Okla. Stat. § 7551 by adding section I:

I. Notwithstanding any other provision of law, any parent or other person convicted of forcible anal or oral sodomy, rape, rape by instrumentation, or lewd molestation of a child under fourteen (14) years of age subsequent to a previous conviction for any offense of forcible anal or oral sodomy, rape, rape by instrumentation, or lewd molestation of a child under fourteen (14) years of age shall be punished by death or by imprisonment for life without parole.

This is better than it once was: the original bill had it as a mandatory death sentence.

By the way, that means that a person who masturbates in front of a child twice (which is admittedly disgusting) is eligible for the death penalty.

i realize marginal deterrence is not the legal issue, but it is an issue that many are discussing, so we might as well call it by its common name.

the even greater practical consideration is that men get convicted of this offense on the flimsiest evidence imaginable -- look at the amirault convictions in massachusetts.

as someone noted, at least with murder, there's a dead body. in molesstation cases, there is sometimes nothing more than the practice perfected by janet reno -- coercing children to make false rape allegations.

J said... "My opinion is simply that once the punishment for the rape of a child is death, what is stopping a child rapist from doing anything else?"

The fact that they've been executed?

Gets me EVERY TIME I HEAR IT! or a variation there of.

If execution is acceptable in one particular case, I don't see how it can be cruel or unusual, because then you are defining cruel and unusual on a curve. It's only cruel or unusual dependant on specifics, unassociated with either the definition of cruel, or unusual.

Those definitions should be left to the authority of the states, or legislatures, not to the arbitrary arbitration of a third party based on their own sense of seemliness (spelling?) at the time.

As for the original quote about killing a child, what about the suicides of victims of rape? If rapists, in effect cause the conditions that lead to the high number of suicides, and suicide attempts among those who have been raped, or molested, then they should be charged with murder ne?

We hung cattle rustlers not all that long ago. Some of us still have living relatives who saw it (not many.) happen. I'd rather hang a rapist of adult women, than a cattle rustler. and I mean PERSONALY! I would rather hang a rapist.

I've neverthought Coker was rightly decided, but I am reconciled to the unlikelihood that it will ever be overturned. In many ways, it is actually more repugnant a decision than were Roper and Atkins: those cases merely declared an imaginary Constitutional restraint on whether someone who may or may not bear full culpability for their actions could be executed; Coker simply declared that rape isn't a big enoguh deal for the death penalty. I dissent.

My only concern where the death penalty is concerned is the standard of evidence, a concern which applies a fortiori in rape. I really think that there is a case to be made that conservatives have developed a tin ear in overreactiontoliberal shrillness during the 1970s and 1980s. Certainly the impression one gets from Edward Lazarus' account is that the Supreme Court was exasperated with a continual delaying use of repeat habeas corpus, until eventially the pendulum swung too far against it: Herrera v. Collins is STRONG medicine.

If, however, it could be proved beyond any doubt that the person was guilty of rape, particularly of someone who by definition cannot consent, I would support the death penalty with gusto. Heck, I'd lead the lawsuit to prove that hanging, drawing, emasculation and quartering wasn't unconstitutional.

the federal government pretty much ignores the fact that states define child differently.

thus, even though sexual abuse of a child under federal law requires that the child be under 16, a statutory rape conviction involving a 17 year old can still be used to enhance a sentence for engaging in a pattern of sexual abuse of a child, if the defendant is convicted of a federal sex crime. u.s. v. gunderson, 345 F.3d 471 (7th Cir. 2003).

JJenkins:I'm not sure I buy the issue of whether the DP is cruel and unusual has been adequately decided. while most of Furman v. Georgia was decided on the unfair application of the death penalty, 2 justices (Brennan and Marshall) agreed with my view that the death penalty contradicts the current evolving moral standards of our society.

I will concede that "disproportionate punishment is inconsistent with the 8th Amendment's cruel and unusual standard". my last comment was quite off the cuff and didn't adequately consider the first part of the amendment (excessive bail/fines)

ziemer - that wasn't a knock, i was just trying to change the subject.

2 justices (Brennan and Marshall) agreed with my view that the death penalty contradicts the current evolving moral standards of our society.

I don't agree that the meaning of the Eighth Amendment turns on "the current evolving moral standards of our society" (the Trop test),and I don't agree that - even if it did - the death penalty is even remotely at variance from the prevailing moral standards of society.

Marghlar: I'm probably misreading your comment, but doesn't the Circuit Judge's story tend to prove the death penalty deterred a crime?

Yes. That was the point I was trying to make.

However, deterrence in and of itself isn't the whole ball game. You have to look at cost v. deterrence. It costs a very, very lot to execute someone, given the necessary process (and I think that the irrevocability of the decision makes careful process important). Given that reality, execution in most cases is probably not that valuable as a deterrent, because more crime would probably be prevented by taking the oodles of money spent on the court time and putting it into policing, while the criminal does life without parole.

I'd also question whether the desert of child rape is death. I find the crime enormously detestful, but not as bad as outright murder.

By definition, the DP is not per se unconstitutional (the 5th Amendment was adopted at the same time and contemplates the death penalty). Evolving standards of decency is fundamentally laughable. The *point* of the Constitution is to place certain things forever beyond the simple legislative process.

Proportionality, on the other hand, makes sense. No rational person could believe that petty theft is worthy of the death penalty (okay, except a Randian, but I said rational and I meant reasonable).

That seems to be a meaningful test of what is "cruel and unusual," but it doesn't relieve the justices of determining what is proportional. Scalia would hate that because there's no way for him to formulate a rule (lots of judicial discretion now, very little for future lower court judges), but other justices (like Stevens) would find that unproblematic (weigh the factors now, give future judges guidance in weighing factors then). It's a question of whom you want exercising discretion, really.

None of that affects the fact that the death penalty is profoundly misguided policy, but I don't think that the Constitutional attack is a proper one (though obviously Atkins et al. tell us that it is an effective one: how the standard for punishment can be different from the standard for accountability is beyond me, but what do I know?). We can't (or at least shouldn't) fall into the trap of believing our policy preferences are reflected in the Constitution, or that no bad results can obtain thereunder (its drafters were human, after all, and could have erred).

Simon said the following:"If, however, it could be proved beyond any doubt that the person was guilty of rape, particularly of someone who by definition cannot consent, I would support the death penalty with gusto."

Anyone who has ever had to try a number of such cases can tell you that it's rare for the standard of "beyond all doubt" to be met. The most heinous cases, those involving very young children, are for obvious reasons the most reliant on the testimony of adult intermediaries, such as outcry witnesses and child psychologists, to interpret the victim's statements and behavior for the jury.

JJenkins: of course proportionality makes sense , but that doesnt mean that's there in the constitution either, necessarily - though i'd (now) say that it is in the 8th.

I can see how opposing the DP outside of constitutional arguments makes more practical sense than letting judges rule (Roe), but I'm not enough of an originalist to see the text as fixed in meaning (vs. being judged by evolving moral standards). as to whether that test has been passed, Simon's probably right about that - my wanting it so doesn't make it so.

a question: to what degree is a Supreme Court member to weigh his/her own values in these situations? or does it simply need to be the evolving moral standards of our society? our legislative system elects representatives rather than holds plebescites, allowing one person's individual judgement to contradict the will of the people (hopefully, in favor of the best interests of the people). and, the judicial interpreters?

If the text is not to have a fixed meaning, then it may as well not exist. The only way is if it has a fixed meaning, bad results and all. Ideally, a judge should ignore his or her personal beliefs as to what is the right (as in moral) outcome and judge things on what the right outcome (measured against the Constitution or statute) is. Good or bad outcomes aren't for judges to decide at law. The problem with the method of judging that aims for good outcomes by distorting the text (or ignoring it) is that you create rights by fiat.

It's all well and good today, but when future judges change their minds, well, tough. See e.g. Sherbert & Smith. Unless you just arbitrarily decide to put a racheting condition on such decisions, you'll have no bitch when the Supreme Court in 2035 decides that sedition laws are just peachy. Even then, the ratchet goes against our system wherein only prudential concenrns prevent subsequent courts from overrulling prior cases at will.

I don't think so, no, because then you can still change it to fit your mood at the time. It would not be utterly meaningless, but it wouldn't serve its ostensible functions of limiting and guiding the government.

A single, fixed meaning is necessary for any action to be taken in reliance thereon. If we can change or nudge what something means, what was permissible last week isn't now, and what was impermissible last week may be now. Fixed meaning avoids that problem (I see it as a problem, someone sufficiently postmodern in outlook wouldn't), but leaves open the possibility of harsh results. I am fine with that.

Harsh results motivate people to change things; ameliorative judicial doctrines produce get-along robots who think everything will be just peachy so long as our guardians (e.g. judges) are looking out for us. Given that reliance on other people to secure one's rights is a fundamentally bad idea (everyone will act in his own self-interest, and if that's to your detriment, tough cookies), I think having the first situation obtain is better than the second.

I think you overstate your point. Even ambiguous text constrains judges, and gives rise to reliance interests. If X can mean Y, Z or W, judges are constrained from interpreting it as A-V, and the public can rely upon the fact that A-V are outside of its scope.

So, for instance, the fact that diversity jurisdiction extends to suits between citizens of different states is ambiguous. It could mean either complete diversity or minimal diversity (or, surely, something in between). However, it very clearly doesn't provide for suits between citizens of the same state only. See? It limits, without limiting absolutely. Judicial construction can do the rest of the work.

Furthermore, since it is literally impossible to remove all ambiguity from any rational system of law, this is something we are just going to have to live with. Constraining judges is good, but there is no way around the fact that eventually, gaps will be found in any determinate system of decision making you care to come up with. At that point, judges just have to pick something. As in, just what modern forms of searching for evidence are unreasonable under the Fourth Amendment? There is just no way at all to give a mechanistic answer to that question. It has to involve judgment, and frequently, room for disagreement. It is moderately constraining, but not absolutely constraining.

"For the rape victim, life may not be nearly so happy as it was, but it is not over and normally is not beyond repair."

This stikes me as just about right. Victims of rape, even children, are not beyond repair, and so the death penalty should not be an option.

Pogo wrote: "The lifetime consequences of child rape are severe. Among adults who were so abused, suicide and drug abuse are common. Psychiatry hospitals are full of their destroyed souls."

I have often wondered why this should be so. What is it about the crime of rape that alters the normal cycle of recovery for its victims? I can only think that social attitudes surrounding the crime make it harder, not easier, for its victims to recover.

Mary, you're misinterpreting my point. I think that *more* congressional actions should be invalidated because they are inconsistent with the Constitution. To the extend that you think those actions are good, there is a mechanism to amend the Constitution that supermajorities can use. I want a toothier Court to tell Congress that it has overstepped its bounds. The text of the Constitution is much more defendant friendly than the system now in place. When I spoke of bad consequences, I was talking about consequences with which a supermajority disagree, not bad in any moral sense. The death penalty is morally repugnant to me, but I am not so conceited as to believe my moral qualms are codified in the Constitution. That conceit is reserved for law professors and judges.

Moreover, when I spoke of people, I meant the people. Right now, most people are rationally ignorant of things that go on for the reason I mentioned. The problem of capture exists because one small group of 10 is much more motivated to have the government give them each $1,000 than a group of 1,000,000 is to make the government not take $0.01. There's not a lot any system can do for that, except by not allowing such transfers (e.g. the toothier court striking down subsites and such as not "regulations" of commerce).

Marghlar, I don't think that diversity jurisdiction is your strongest argument because it's governed by statute now anyway. But you're really making my point for me there. Is it minimum diversity or total diversity? Pick one and go forth and pick no more.

As to reasonableness re: Fourth Amendment searches, I wish we could have our fight be only about reasonableness. Now our fight is about what's a search before we even get there (dog sniff's aren't searches? Give me a break!). There is an available rule that is too defendant friendly to be adopted, the rule of trespass, but it's been soundly rejected because judges didn't like the outcomes despite the fact that it would be perfectly consistent with the Constitution, much more so than the current regime.

John, I'd agree that just picking a rule and sticking with it has a lot of value. I was taking issue with what I thought was your point -- which I took to be the necessity of an interpretive methodology that totally answers the question for the judge. I used diversity jurisdiction as my example, because it's a great example of totally ambiguous constitutional language that has caused us very little trouble. Jurisdiction provides great examples of the exact same words being construed oppositely when used in Article III and when used in statutes.

By the way you responded to my diversity example, you seem to suggest that you actually agree with me -- interpretation has limits, and judges sometimes have to make policy choices once it has run out. But once they have done so, they ought to stick with it absent very good reasons to throw out precedent.

Like Justice Brandeis said, sometimes it's better for a rule to be settled than for it to be settled right.

As far as the fourth amendment goes, it's hard for me to see why the text commands any one regime over another, as long as there is a colorable argument that a practice is reasonable. This seems like the height of delegation to the judiciary in the constitution. I think the justices are authorized to make rule-like doctrine here, or to do a very common-law, case-by-case approach. There are, of course, policy arguments on both side of that issue.

I'd also suggest that consequentalist reasoning, as in, an inquiry into acceptable outcomes, has a proper place in a reasonableness inquiry.

As to the question of what a search is, that again seems like a question beyond the reach of absolute formalism. Maybe your rule is more justifiable as a policy matter (I don't profess to know, although internet search seems an example that would push back at you a bit). But I fail to see how it is imposed by the constitution, even if it is permitted by it.

It's not a matter merely of determent, which clearly is significant, yet also a matter of extermination. Noone can finally answer what motivates human behavior, ill or good, yet the sickest of it deserves to be ended, for the greater benefit of all.